EXHIBIT 10.2(e)
FIFTH AMENDMENT TO NOTE PURCHASE AGREEMENTS
THIS FIFTH AMENDMENT (this "FIFTH AMENDMENT") dated as of May
17, 1999 (the "FIFTH AMENDMENT CLOSING DATE") to the Note Purchase Agreements
each dated July 7, 1995 is between CANDLE CORPORATION WORLDWIDE, INC., a
Delaware corporation ("WORLDWIDE"), CANDLE CORPORATION OF AMERICA, a New York
corporation ("CANDLE America"), PARTYLITE GIFTS, INC., a Delaware corporation
("PARTYLITE"; each of Worldwide, Candle America and PartyLite being referred to
herein as a "PRIOR ISSUER" and collectively as the "PRIOR ISSUERS"), and BLYTH
INDUSTRIES, INC., a Delaware corporation (the "PARENT"),and each of the holders
of the Notes, as defined below (collectively, the "NOTEHOLDERS").
RECITALS:
A. The Prior Issuers, the Parent and each of the Noteholders
have heretofore entered into separate and several Note Purchase Agreements each
dated July 7, 1995, as amended by the Amendment of Note Purchase Agreement dated
as of June 30, 1996, Amendment No. 2 to Note Purchase Agreement dated as of
December 13, 1996, Amendment No. 3 to Note Purchase Agreement dated as of March
10, 1997, and the Fourth Amendment to Note Purchase Agreement dated as of
October 17, 1997 (collectively, the "NOTE AGREEMENTS"). Capitalized terms used
herein shall have the respective meanings ascribed thereto in the Note
Agreements unless herein defined or the context shall otherwise require.
B. The Parent has heretofore issued pursuant to the Note
Agreements $25,000,000 aggregate principal amount of its Amended and Restated
7.54% Senior Notes due June 30, 2005 (the "NOTES"), all of which principal
amount is presently outstanding. The Noteholders are the holders of 100% of the
outstanding principal amount of the Notes.
C. The Prior Issuers have each executed and delivered to the
Noteholders a Guaranty Agreement dated as of October 17, 1997 (collectively, the
"GUARANTY AGREEMENTS") pursuant to which the Prior Issuers have unconditionally
guaranteed the Parent's payment obligations under the Note Agreements and the
Notes.
D. The Parent and the Prior Issuers have requested that (i)
the Guaranty Agreements be terminated, and (ii) that certain amendments be made
to the Note Agreements.
E. Subject to the terms and conditions of this Fifth
Amendment, each of the Noteholders is willing to (i) terminate the Guaranty
Agreements and (ii) amend the Note Agreements in certain respects as set forth
herein.
NOW, THEREFORE, for good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Prior Issuers, the
Parent and the Noteholders do hereby agree as follows:
SECTION 1 TERMINATION OF GUARANTY.
Subject to the terms and conditions of this Fifth Amendment,
effective on the Fifth Amendment Closing Date (as defined below) the Guaranty
Agreements shall (without further action on the part of any Person) be
terminated and shall have no further force and effect until such time (if ever)
that (a) the obligations of any Prior Issuer under any guaranty by such Prior
Issuer of the obligations of the Parent under the Credit Agreement become
enforceable, or
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(b) any Prior Issuer is or becomes obligated under any other Guaranty of
Indebtedness of Parent. If and when the obligations of any Prior Issuer under
any guaranty by such Prior Issuer of the obligations of the Parent under the
Credit Agreement becomes enforceable or any Prior Issuer is or becomes obligated
under any other Guaranty of Indebtedness of Parent, the Guaranty Agreement shall
thereafter be enforceable against such Prior Issuer as if this Fifth Amendment
had never been entered into.
SECTION 2 AMENDMENTS TO NOTE AGREEMENTS.
Effective on the Fifth Amendment Closing Date, each of the
Note Agreements is hereby amended as follows:
2.1 AMENDMENTS TO SECTION 9 - AFFIRMATIVE COVENANTS.
(a) AMENDMENTS TO SECTION 9 - INTRODUCTION.
(i) The introductory line of Section 9 is hereby
amended by deleting the phrase "and each Prior Issuer".
(b) AMENDMENTS TO SECTION 9.1-9.5.
(i) Sections 9.1 through 9.5 are hereby amended by
deleting the phrase "The Parent and each Prior Issuer will and
will cause each of their respective Subsidiaries" and
replacing such phrase with the phrase "The Parent will and
will cause each of its Subsidiaries".
(ii) Section 9.6 is hereby amended by deleting the
phrase "The Parent and each Prior Issuer will" and replacing
such phrase with the phrase "The Parent will and will cause
each of the Prior Issuers to".
2.2 AMENDMENTS TO SECTION 10 - NEGATIVE COVENANTS.
(a) AMENDMENTS TO SECTION 10 - INTRODUCTION.
(i) The introductory line of Section 10 is hereby
amended by deleting the phrase "Each of the Prior Issuers and
the" and replacing such phrase with the word "The".
(b) AMENDMENTS TO SECTION 10.1 AND 10.2.
(i) Sections 10.1 and 10.2 are hereby amended by
deleting the phrase "The Parent and each Prior Issuer will not
and will not permit any of their respective Subsidiaries" and
replacing such phrase with the phrase "The Parent will not and
will not permit any of its Subsidiaries".
(c) AMENDMENTS TO SECTION 10.2.
(i) Clause (b) of Section 10.2 is hereby amended by
(1) deleting the phrase "existing as of the date hereof and";
and (2) deleting reference therein to "Section 10.2(g)" and
inserting "Section 10.2(f)" in lieu thereof.
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(ii) Clause (d) of Section 10.2 is hereby deleted in
its entirety and replaced with the following:
"(d) Liens existing on property of a Person
immediately prior to its being consolidated with or
merged into the Parent or any of its Subsidiaries or
immediately prior to its becoming a Subsidiary of the
Parent; PROVIDED that to the extent any Lien
described in Items 6, 7, 9 and 10 of Schedule 10.2
secures any greater amount of Indebtedness than the
respective amount thereof set forth in Schedule 10.2,
such Lien shall not be permitted by this Section
10.2(d) but only by Section 10.2(f);"
(iii) Clause (e) of Section 10.2 is hereby amended by
adding the word "and" at the end thereof.
(iv) Clause (f) of Section 10.2 is hereby deleted in
its entirety and replaced with the following:
"(f) Liens securing Indebtedness of the Parent or any
of its Subsidiaries not described in Section 10.2(a)
through 10.2(e) above (the "OTHER LIENS"), PROVIDED
that after giving effect to the creation, incurrence
or assumption, or after accounting for the existence,
of all Other Liens, the aggregate principal amount of
all Indebtedness secured by all Other Liens does not
exceed 15% of Consolidated Net Worth."
(v) Clause (g) of Section 10.2 is hereby deleted in
its entirety.
(d) AMENDMENTS TO SECTION 10.3.
(i) Clause (b) of Section 10.3 is hereby amended by
deleting the phrase "existing as of the Fourth Amendment
Closing Date and".
(ii) Clause (c) of Section 10.3 is hereby deleted in
its entirety and replaced with the following:
"(c) a Subsidiary may remain liable with respect to
Indebtedness outstanding at the time such Subsidiary
becomes a Subsidiary; PROVIDED that (i) such
Indebtedness shall not have been incurred in
contemplation of such Subsidiary becoming a
Subsidiary and (ii) immediately after such Subsidiary
becomes a Subsidiary, no Default shall exist;
PROVIDED that any increase in the amount of the
Indebtedness described in Items 6, 7, 9 and 10 of
Schedule 10.3 at such time over the respective amount
thereof set forth in Schedule 10.3 shall not be
permitted by this Section 10.3(c) but only by Section
10.3(f);"
(iii) Clause (e) of Section 10.3 is hereby amended by
adding the word "and" at the end thereof.
(iv) Clause (f) of Section 10.3 is hereby deleted in
its entirety and replaced with the following:
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"(f) a Subsidiary may become and remain liable after
the date hereof with respect to Indebtedness not
described in Sections 10.3(a) through 10.3(e) above,
PROVIDED that after giving effect to such
Subsidiary's creation, assumption, incurrence or
guaranty of (or such Subsidiary's becoming liable
with respect to), or after accounting for the
existence of, such other Indebtedness, the aggregate
principal amount of all such Indebtedness of
Subsidiaries does not exceed 15% of Consolidated Net
Worth."
(v) Clause (g) of Section 10.3 is hereby deleted in
its entirety.
(e) AMENDMENTS TO SECTION 10.7.
(i) The sixth line of Section 10.7 is hereby amended
by adding the phrase ", including but not limited to, by a
distribution to shareholders" after the phrase "or
indirectly".
2.3 AMENDMENTS TO SECTION 16 - EXPENSES, ETC.
(a) AMENDMENTS TO SECTION 16.1.
(i) Section 16.1 is hereby amended by deleting the
phrase "and the Prior Issuers will be jointly and severally"
each time it appears and replacing such phrase with the phrase
"will be".
(b) AMENDMENTS TO SECTION 16.2.
(i) The first line of Section 16.2 is hereby amended
by deleting the phrase "and the Prior Issuers".
2.4 DELETION OF PRIOR ISSUERS AS A PARTY TO AGREEMENT.
Effective on the Fifth Amendment Closing Date, each Note
Agreement is further amended by deleting each Prior Issuer as party thereto
until such time (if ever) that (a) the obligations of such Prior Issuer under
any guaranty by such Prior Issuer of the obligations of the Parent under the
Credit Agreement become enforceable, or (b) such Prior Issuer is or becomes
obligated under any other Guaranty of Indebtedness of Parent. If and when the
obligations of any Prior Issuer under any guaranty by such Prior Issuer of the
obligations of the Parent under the Credit Agreement becomes enforceable or any
Prior Issuer is or becomes obligated under any other Guaranty of Indebtedness of
Parent, such Prior Issuer shall thereafter be a party to each Note Agreement as
if this Fifth Amendment had never been entered into.
SECTION 3 AMENDMENTS TO EXHIBITS AND SCHEDULES.
Effective on the Fifth Amendment Closing Date, the following
Exhibits and Schedules shall be amended as set forth below:
(a) The form of Subsidiary Guaranty attached to the Note
Agreements as Exhibit 4.7 is hereby deleted in its entirety.
(b) The form of Compliance Certificate attached to the Note
Agreements as Exhibit 7.2 is hereby amended to read as set
forth on Exhibit A attached to this Fifth Amendment.
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(c) Schedule 5.4 attached to the Note Agreements is hereby
amended to read as set forth on Exhibit B attached to this
Fifth Amendment (as the same may be updated by written notice
by Parent to the Noteholders on or before the Fifth Amendment
Closing Date).
(d) Schedules 10.2 and 10.3 attached to the Note Agreements
are hereby amended to read as set forth on Exhibits C & D
attached to this Fifth Amendment.
SECTION 4 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PARENT.
4.1 To induce the Noteholders to execute and deliver this
Fifth Amendment (which representations shall survive the execution and delivery
of this Fifth Amendment), the Parent represents and warrants to the Noteholders
that:
(a) the Parent is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and is duly qualified as a foreign corporation and is in good
standing in each jurisdiction in which such qualification is required
by law, other than those jurisdictions as to which the failure to be so
qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
this Fifth Amendment has been duly authorized, executed and delivered
by the Prior Issuers and the Parent, respectively, and constitutes the
legal, valid and binding obligation, contract and agreement of the
Prior Issuers and the Parent, respectively, enforceable against each of
them in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
or equitable principles relating to or limiting creditors' rights
generally;
(b) each of the Notes has been authorized, executed
and delivered by the Parent, constitutes the legal, valid and binding
obligation, contract and agreement of the Parent, enforceable against
the Parent in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws or equitable principles relating to or limiting creditors'
rights generally;
(c) the Note Agreements, as amended by this Fifth
Amendment, constitute the legal, valid and binding obligations,
contracts and agreements of the Prior Issuers and the Parent,
respectively, enforceable against each of them in accordance with their
respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable
principles relating to or limiting creditors' rights generally;
(d) the execution, delivery and performance by the
Prior Issuers and the Parent, respectively, of this Fifth Amendment,
and the performance by the Prior Issuers and the Parent, as applicable,
of the Note Agreements and the Notes (i) have been duly authorized by
all requisite corporate action and, if required, shareholder action,
(ii) do not require the consent or approval of any governmental or
regulatory body or agency, and (iii) will not (A) violate (1) any
provision of law, statute, rule or regulation or their respective
articles of incorporation or bylaws, (2) any order of any court or any
rule, regulation or order of any other agency or government binding
upon either of them, or (3) any provision of any material indenture,
agreement or other instrument to which either of
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them is a party or by which either of their properties or assets are or
may be bound, including, without limitation, that certain Credit
Agreement dated as of October 17, 1997, as amended, among the Parent,
the banks listed therein, Xxxxxx Guaranty Trust Company of New York, as
Documentation Agent and Bank of America National Trust and Savings
Association, as Administrative Agent (the "CREDIT AGREEMENT") or (B)
result in a breach or constitute (alone or with due notice or lapse of
time or both) a default under any indenture, agreement or other
instrument referred to in clause (iii)(A)(3) of this Section 4.1(d);
(e) as of the date hereof and after giving effect to
this Fifth Amendment and the consummation of the transactions
contemplated hereby, no Default or Event of Default has occurred which
is continuing; and
(f) all the representations and warranties contained
in Section 5 of the Note Agreements (excluding Section 5.3) are true
and correct in all material respects with the same force and effect as
if made by the Parent on and as of the date hereof.
4.2 The Parent covenants that it shall pay the fees and
expenses set forth in that certain letter dated May 17, 1999 at the times
specified therein.
SECTION 5 CONDITIONS TO EFFECTIVENESS OF SECTIONS 1, 2 AND 3.
5.1 Sections 1, 2 and 3 of this Fifth Amendment shall not
become effective until, and shall become effective when, each and every one of
the following conditions shall have been satisfied on or before August 15, 1999
(the date on which all such conditions are satisfied being the "FIFTH AMENDMENT
CLOSING DATE"):
(a) executed counterparts of this Fifth Amendment,
duly executed by the Prior Issuers, the Parent and the Required
Holders, shall have been delivered to the Noteholders;
(b) Parent shall have paid the fees and expenses set
forth in that certain letter dated May 17, 1999;
(c) on the Fifth Amendment Closing Date, the
representations and warranties of the Parent set forth in Section 4
hereof shall be true and correct on and as of the date hereof and as of
the Fifth Amendment Closing Date, and the Noteholders shall have
received an Officer's Certificate of the Parent dated the Fifth
Amendment Closing Date to such effect;
(d) on the Fifth Amendment Closing Date, Parent shall
have issued in a public offering registered under the Securities Act of
1933 not less than $100 million principal amount of its senior notes
(the "NEW SENIOR NOTES"), which New Senior Notes (i) shall have a
maturity date of not less than ten (10) years, and with no required
amortization payments prior to July 1, 2005, (ii) shall have been rated
by S&P and Xxxxx'x, (iii) shall be unsecured and (iv) shall not be
guaranteed by any Subsidiary of the Parent; and
(e) on or before the Fifth Amendment Closing Date,
the Noteholders shall have received evidence satisfactory to the
Required Holders that (a) the guaranties
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of the Prior Issuers of the obligations of the Parent under the Credit
Agreement have become unenforceable until such time (if ever) that any
Prior Issuer is or becomes obligated under a Guaranty (as defined in
the Credit Agreement) of Indebtedness (as defined in the Credit
Agreement) of the Parent and (b) all guaranties by the Prior Issuers
under any other credit agreement to which Parent is a party have been
terminated.
Upon receipt of all of the foregoing, this Fifth Amendment
shall become effective.
SECTION 6 MISCELLANEOUS.
6.1 This Fifth Amendment shall be construed in connection with
and as part of each of the Note Agreements, and except as modified and expressly
amended by this Fifth Amendment, all terms, conditions and covenants contained
in the Note Agreements and the Notes are hereby ratified and shall be and remain
in full force and effect.
6.2 Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Fifth Amendment may refer to the Note Agreements without making specific
reference to this Fifth Amendment but nevertheless all such references shall
include this Fifth Amendment unless the context otherwise requires.
6.3 The descriptive headings of the various Sections or parts
of this Fifth Amendment are for convenience only and shall not affect the
meaning or construction of any of the provisions hereof.
6.4 This Fifth Amendment shall be governed by and construed in
accordance with New York law.
6.5 The execution hereof by the parties hereto shall
constitute a contract between such parties for the uses and purposes herein set
forth. This Fifth Amendment may be executed in any number of counterparts, each
executed counterpart constituting an original, but all together only one
agreement.
(Remainder of page intentionally left blank)
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In witness whereof, the parties hereto have caused this Fifth
Amendment to be duly executed and delivered as of the date first written above.
BLYTH INDUSTRIES, INC.
By________________________________________________
Xxxxxxx X. Xxxxxxxx
Vice President and Chief Financial Officer
CANDLE CORPORATION WORLDWIDE, INC.
By________________________________________________
Xxxxxxx X. Xxxxxxxx
Vice President, Chief Financial Officer
and Treasurer
CANDLE CORPORATION OF AMERICA
By________________________________________________
Xxxxxxx X. Xxxxxxxx
Senior Vice President and Treasurer
PARTYLITE GIFTS, INC.
By________________________________________________
Xxxxxxx X. Xxxxxxxx
Vice President and Treasurer
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The foregoing is hereby
agreed to as of the
date thereof.
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By: CIGNA INVESTMENTS, INC., its Authorized Agent
By______________________
Name:
Title:
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The foregoing is hereby
agreed to as of the
date thereof.
CIGNA PROPERTY AND CASUALTY
INSURANCE COMPANY
BY: CIGNA INVESTMENTS, INC., its Authorized Agent
By______________________
Name:
Title:
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The foregoing is hereby
agreed to as of the
date thereof.
LIFE INSURANCE COMPANY OF
NORTH AMERICA
BY: CIGNA INVESTMENTS, INC., its Authorized Agent
By______________________
Name:
Title:
12
The foregoing is hereby
agreed to as of the
date thereof.
UNITED OF OMAHA LIFE INSURANCE COMPANY
By______________________
Name:
Title:
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EXHIBIT A
FORM OF COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFIES THAT:
(1) He/She is the duly elected ____________________ of Blyth
Industries, Inc., a Delaware corporation (the "PARENT");
(2) He/She has reviewed the terms of those certain Note
Purchase Agreements dated as of July 7, 1995, as amended,
supplemented or otherwise modified to the date hereof (said
Note Purchase Agreements, as so amended, supplemented or
otherwise modified, collectively being the "NOTE PURCHASE
AGREEMENTS", the terms defined therein and not otherwise
defined in this Certificate (including Attachment No. 1
annexed hereto and made a part hereof) being used in this
Certificate as therein defined), by and among the Prior
Issuers, the Parent and the Purchasers in each of the Note
Purchase Agreements, and has made, or has caused to be made
under his/her supervision, a review in reasonable detail of
the transactions and condition of the Parent and its
Subsidiaries during the accounting period covered by the
attached financial statements; and
(3) The examination described in paragraph (2) above did not
disclose, and he/she has no knowledge of, the existence of any
condition or event which constitutes a Default or Event of
Default during or at the end of the accounting period covered
by the attached financial statements or as of the date of this
Certificate[, except as set forth below].
[Set forth [below] [in a separate attachment to this
Certificate] are all exceptions to paragraph (3) above listing, in detail, the
nature of the condition or event, the period during which it has existed and the
action which the Parent and/or its Subsidiairies has taken, is taking, or
proposes to take with respect to each such condition or event:
_________________ _________________ _________________ ________________]
The foregoing certifications, together with the computations
set forth in Attachment No. 1 annexed hereto and made a part hereof and the
financial statements delivered with this Certificate in support hereof, are made
and delivered this __________ day of _____________, ______ pursuant to Section
7.2 of the Note Purchase Agreements.
BLYTH INDUSTRIES INC.
By: __________________________
Title: ________________________
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ATTACHMENT NO. 1
TO COMPLIANCE CERTIFICATE
This Attachment No. 1 is attached to and made a part of a
Compliance Certificate dated as of ____________, _____ and pertains to the
period from ____________, _____ to ____________, _____. Section references
herein relate to Sections of the Note Purchase Agreements.
A. Indebtedness secured by all Other Liens not to exceed 15% of
Consolidated Net Worth (Section 10.2)
1. Indebtedness secured by all Other Liens __________
2. 15% of Consolidated Net Worth __________
B. Indebtedness of Subsidiaries not to exceed 15% of
Consolidated Net Worth (Section 10.3)
1. Indebtedness of Subsidiaries __________
2. 15% of Consolidated Net Worth __________
C. Investments not to exceed 15% of Consolidated
Net Worth (Section 10.4)
1. Investments __________
2. 15% of Consolidated Net Worth __________
D. Leverage Ratio (Section 10.5) shall not be less than 2.00 : 1.00
1. Consolidated Debt at period end __________
2. Consolidated Net Income (last four quarters) __________
3. Income tax expenses (last four quarters) __________
4. Interest expense (last four quarters) __________
5. Depreciation and amortization (last four quarters) __________
6. Consolidated EBITDA (Sum of Lines 2, 3, 4, and 5) __________
7. Leverage Ratio (Line 1 divided by Line 6) __________
E. Minimum Consolidated Net Worth (Section 10.6)
1. Actual Stockholders' Equity at period end __________
2. Minimum Consolidated Net Worth
a. Starting sum $160,000,000
b. Plus 50% of Cumulative Positive Net Income __________
c. Plus 50% of Cumulative Equity Proceeds __________
d. Minimum Consolidated Net Worth __________
(Sum of Lines a, b, and c)
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EXHIBIT B
SCHEDULE 5.4 TO NOTE AGREEMENTS
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EXHIBIT C & D
SCHEDULES 10.2 AND 10.3 TO NOTE AGREEMENTS
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